As the popularity of electronic cigarettes has grown, so has the prevalence of e-cigarette litigation. Many users have sued e-cig manufacturers for exploding devices that have caused severe burns and amputations. E-cigarette companies have also begun to sue over allegedly unjust FDA regulations.
Since they first became available for sale in the U.S. in 2007, electronic cigarettes have rapidly grown in popularity. In 2014, there were roughly 2.5 million e-cigarette smokers in America, many of whom were minors, and more than 400 brands of e-cigs on the market. This massive growth in the e-cig industry made headlines, and so have the numerous e-cig lawsuits popping up after users suffered injuries from device explosions.
Estimates on the industry value vary from country to country. In 2015, the e-cig industry was worth $1.5 billion in the U.S. alone. Wells Fargo estimates the industry will top $10 billion worldwide by 2017, and Bloomberg estimates the global e-cig industry will surpass the profits of traditional cigarettes by 2047.
U.S. Food and Drug Administration rulings in 2016 created new restrictions on the production, marketing and sale of e-cigarettes — similar to those on traditional tobacco — which may strengthen existing lawsuits and bring about future litigation against e-cig brands and their Big Tobacco backers. However, the new rules also triggered several lawsuits on behalf of the e-cig companies against the FDA for allegedly unconstitutional regulations.
The Costs of E-Cigarette Risks
Until mid-2016, the production, marketing and sale of e-cigarettes were largely unregulated. This lack of oversight has led to several adverse effects of e-cigarette use, including the development of serious health conditions like popcorn lung and exploding devices that caused physical damage to users and property.
Since coming onto the market, e-cigarettes have been linked to many fires and burn injuries. Although rare, the devices do malfunction and have exploded in some cases. According to a U.S. Fire Administration study from 2014, the media had reported 25 separate incidences of e-cig explosion or fire between 2009 and 2014. Of those, 80 percent of the incidents occurred while the device was being charged, 8 percent occurred while it was in use, 4 percent occurred while it was being stored or transported, and 8 percent were unknown.
Authorities commonly cite the battery as the cause of the explosions and any subsequent fires. Although Lithium-ion batteries are very popular power sources for portable devices, they can leak, especially when constructed as a small cylinder, such as in an e-cig. If the battery leaks into the e-cig battery chamber, pressure can build. Combined with overheating, the flammable and combustible electrolyte fluid leaked from the battery can cause the e-cigarette to explode and rocket across a room.
Users whose devices explode have experienced a variety of effects, including:
- Damage to the face, tongue and mouth
- Damage to the hands and fingers
- Damage or destruction of property, including a home or vehicle
- Severe burns from any associated fires
- Severe chemical burns
In 2015, researchers from Harvard’s T.H. Chan School of Public Health found more than 75 percent of flavored e-cigarettes and liquid refills contained the chemical diacetyl. The chemical is a flavoring linked to a rare respiratory disease called bronchiolitis obliterans, commonly called popcorn lung.
When repeatedly inhaled, diacetyl causes scarring in the lungs that causes difficulty breathing. Manufacturers use the chemical to give food such as microwave popcorn a buttery flavor. In 2000, scientists found some of the first cases of bronchiolitis obliterans in eight popcorn factory employees. This discovery earned the disease its nickname. The U.S. Centers for Disease Control and Prevention also call the condition “flavorings-related lung disease.”
Symptoms of popcorn lung include:
- Shortness of breath
- Night sweats
- Weight loss
According to Harvard’s research, 47 of the 51 flavors they tested contained diacetyl, acetoin or 2,3-pentanedione, two other flavoring chemicals that also pose respiratory threats — 39 contained diacetyl, 46 contained acetoin and 23 contained 2,3-pentanedione.
Liquid nicotine — such as that in e-cigarette “juice” packs or cartridges — is deadly. According to the American Association of Poison Control, one teaspoon of liquid nicotine can be lethal to a child.
While some people have used this side effect to commit suicide, liquid nicotine has also been the cause of accidental death. In 2012, the first recorded liquid nicotine death occurred in the United States when a man injected himself with the liquid to commit suicide. In 2015 a British man also killed himself by drinking the liquid from his e-cigarette.
The year prior, an accidental liquid nicotine death occurred in New York when a one-year-old boy ingested the liquid at a residential home. Police declined to tell local news sources whether the liquid nicotine the baby consumed was from an e-cig. At the time there was no state or federal law requiring the child-proofing of e-cigarette packaging.
Key E-Cigarette Lawsuits
In only a few years of use, e-cigarettes have been proven to threaten a user’s health in a variety of ways. As of May 2016, the U.S. Food and Drug Administration has mandated e-cigarettes be treated similarly to traditional cigarettes, including limiting its advertising, requiring warning labels and prohibiting sales to minors.
Before this ruling, however, e-cigarettes were virtually unmonitored. During this time, people experienced many adverse effects of vaping using these devices, mostly related to the seemingly spontaneous combustion of e-cigs while charging or in use, and have filed product liability lawsuits. Since the ruling, many e-cigarette investors have also filed lawsuits against the FDA for its new regulations.
Exploding E-Cigarette Lawsuits
Many users who have experienced an e-cigarette explosion have filed lawsuits against e-cigarette manufacturers and distributors. One notable case occurred in the fall of 2015, when a jury awarded one California woman $1.9 million in a product liability suit.
The plaintiff, Jennifer Ries, sued an e-cigarette distributor, wholesaler and retailer after her device exploded in the car. Ries was charging her e-cig in her car when the explosion occurred, set the car and her dress on fire and caused chemical burns. She had second-degree burns on her legs, buttocks and hand.
Three other Californians also filed e-cigarette explosion lawsuits in late 2015. In one case, the plaintiff Vincente Garza was using the device when it exploded near his face. His mouth and hand were burned, and doctors had to surgically repair his tongue and amputate one of his fingers. In a second case, the plaintiff Gregory Phillips Jr. required skin grafts after his e-cigarette exploded in his pocket. In the third case, plaintiff Daniel Califf was using his e-cig when it exploded, setting the room on fire and creating a large hole in his cheek.
E-Cigarette Lawsuits Against the FDA
Shortly after the May 5, 2016, release of the FDA’s e-cigarette regulations, one e-liquid manufacturer filed a federal lawsuit against the government agency. The lawsuit claims the FDA violated the Administrative Procedure Act when creating the rules, and that the rules violate the First Amendment.
The new regulations include prohibiting the sale of e-cigarettes to minors, restricting vending machine tobacco sales to adult-only facilities and prohibiting free samples. In addition, e-cigarettes must also including health warnings on packaging and advertising, report ingredients and harmful substances to purchasers and provide product listings to the FDA.
Also in 2015 in a California U.S. District Court, a woman filed a class-action lawsuit over the use of harmful chemicals like diacetyl in e-cigs. The case, Cox v. Cuttwood LLC et al, alleges violations of California’s Consumers Legal Remedies Act, unfair competition law and deceptive, false and misleading advertising law, and a breach of express warranty.
The court documents claim the level of diacetyl and other dangerous flavoring chemicals in Cuttwood’s products were the “highest concentrations that has ever been seen in any e-liquid.” None of the products carried a warning label advising users of the chemicals’ known links to popcorn lung, emphysema and chronic obstructive pulmonary disease.
Key E-Cigarette Manufacturers
Although small manufacturers got the e-cig movement started, many Big Tobacco companies have now bought in. In 2012, Lorillard — which R.J. Reynolds has since purchased — acquired Blu e-cigarettes and became the first major tobacco company to enter the market. Lorillard represented 49 percent of the e-cig market share the following year, after purchasing Skycig.
As of April 2016, the Big Tobacco companies that own major e-cigarette brands in the U.S. and abroad include:
- R.J. Reynolds (Vuse)
- British American Tobacco (Vype, Ten Motives)
- Japan Tobacco International (E-lites)
- Imperial (Blu, Jai, Dragonite, Puritane)
- Philip Morris International (Nicocigs, MarkTen)
- Altria (MarkTen)
Who Is Eligible to Sue?
Vapers who used an e-cigarette and experienced an explosion have the right to sue e-cigarette companies for product liability in individual or class action cases. As more information on e-liquid becomes available, such as the Harvard study on e-liquid flavorings, attorneys are also accepting cases against e-cigarette companies for the development of popcorn lung and other respiratory conditions linked to diacetyl. In the past, juries have awarded plaintiffs nearly $2 million in damages for e-cigarette lawsuits for explosions.